With confidence in the U.S. Supreme Court near an all-time low, proposals to introduce 18-year term limits for the justices have attracted new attention. Some have questioned whether such a change would impact judicial independence.
After 26 serving years on the state bench, including as chief justice of the Florida Supreme Court, I can emphatically say that my answer is “no.”
Following an 18-year career as a civil trial lawyer, I was appointed to a Florida appellate court in 1993. Five years later, I was appointed to the Florida Supreme Court, where I served until the age of 70, which was then the court’s mandatory retirement age.
From my perspective, although lifetime appointments might have been a way to ensure judicial independence at the time the Constitution was adopted, it seems clear that lifetime appointments today could have the opposite effect — little or no real accountability for judges serving for far longer than the founders expected. After all, in 1776, the average life expectancy for an American was 35. Now that number is closer to 77, and even higher for federal judges.
Contrast the lifetime tenure for federal judges with my experience as a Florida Supreme Court justice. After being appointed through a nonpartisan merit selection process as set forth in the Florida Constitution, appellate judges and justices appear on the ballot for a “yes” or “no” vote every six years. (While Florida’s Judicial Nominating Commission functioned in a nonpartisan manner when I was appointed, in 2001 the legislature passed legislation giving the governor the authority to appoint all members on the state’s judicial nominating commission, politicizing the appointment process.)
All Florida judges, including appellate judges and supreme court justices, are required to adhere to a strict code of conduct and are subject to discipline, including removal if recommended by the Judicial Qualifications Commission and approved by the Florida Supreme Court if the judge violates the code of conduct. Each year, every judge and justice must file financial documents showing all sources of income, assets, liabilities, and any gifts received over $100. They must take an oath of office promising to decide cases without fear or favor to either party — and to reach decisions based only on the law and facts, not public sentiment.
These guardrails in Florida’s judicial system — an enforceable code of judicial conduct, financial disclosure requirements, and mandatory retirement — contribute much more to ensuring judicial independence than a lifetime appointment without true accountability would.
I take great pride in my judicial career and the hundreds of opinions I authored. I always understood my role was to render fair decisions uninfluenced by popular opinion or political pressure. I spoke extensively to student groups and civic groups on the importance of judicial independence — that judges were not “Republican” or “Democrat” or pro-death penalty or anti-death penalty but, rather, take an oath to be impartial.
One of the first controversial cases I recall authoring during my 20-year tenure involved grandparent visitation of their grandchild against the express wishes of one parent. In Von Eiff v. Azicri, the state supreme court ruled for the parent. In the opinion, I emphasized that “our determination” was “not a comment on the desirability of interaction between grandparents and their children.”
As a grandparent myself at that time of 2 grandchildren (now 11!), I understood those feelings on the most personal of levels. Plus, the case had the potential to generate public outrage, especially from my fellow Florida grandparents. But my opinion in that case was based on my obligation to render a fair and impartial decision; the fact that I would be term limited at a certain age did not sway me from that obligation. (Nor did the fact that I would be up before voters in an upcoming retention election, although election pressures on judges is a more complex issue. Retention elections is not a reform currently being considered for the U.S. Supreme Court.)
Then came the presidential election of 2000. One of the first cases stemming from the election that reached our court involved Palm Beach County’s so-called butterfly ballot, which was designed in a way that potentially caused confusion for determining the voter’s choice. The proof of the confusion was that many Democratic voters in Democratic strongholds had mistakenly cast a ballot for third-party candidate Pat Buchanan rather than Democrat Al Gore, giving an advantage to Republican George W. Bush. The remedy requested was to allow a new vote in Palm Beach County. I was a Palm Beach County resident and had voted by absentee ballot. Despite the fact that there was a great deal of public pressure — especially from the voters in my home county to decide this case favorably for Gore — I was convinced that the law did not provide a basis for a revote.
Over the years, we were required to rule on other high-profile cases that generated strong emotions on either side. One such case involved Terri Schiavo. She had been in a persistent vegetative state for 15 years, and her husband and her parents were at odds over whether she should be kept on life-support. Based on the testimony, the trial judge determined that Schiavo would not have wanted to continue to live in a persistent vegetative state. Schiavo’s parents appealed the trial court judgment, and the appellate court upheld the trial court. But after years of litigation and numerous subsequent appeals, the Florida legislature at the urging of then-Governor Jeb Bush, attempted to undermine the final judgment. Our court unanimously held that such a move was unconstitutional. But neither the fact that the case generated strong feelings nor that we faced intense scrutiny factored in the decision to conclude that “Terri’s law” — the law enacted to try to keep Schiavo alive — was unconstitutional by attempting to undermine the final judgment of the court.
Other cases that generated much controversy involved abortion rights, as well as ones involving interpretation of a state constitutional amendment that outlawed gerrymandering. In all these cases, it was incumbent on us not to allow popular opinion or partisan pressures to sway the outcome. Despite facing a mandatory retirement age and not having a lifetime appointment, we upheld this critical obligation.
To me, rendering decisions on the facts and the law without regard to being swayed by politicians or popular opinion has always been the essence of our justice system and our judicial oath. Judges have that solemn obligation, and that obligation is not one that depends on having a lifetime appointment.
Barbara J. Pariente is former chief justice of the Florida Supreme Court.
